Reform of environmental laws in Botswana: the need for an environmental framework act

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UNIVERSITY OF THE WESTERN CAPE FACULTY OF LAW

DEGREE: LLM (Mode III) LLM DESSERTATION

REFORM OF ENVIRONMENTAL LAWS IN BOTSWANA: THE NEED FOR AN ENVIRONMENTAL FRAMEWORK ACT

NAME: ODUETSE KOBOTO

STUDENT NUMBER: 2432566

SUPERVISOR: PROF T.P. VAN REENEN

DATE: 03/02/2010

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DECLARATION

I, Oduetse Koboto, hereby declare that this dissertation is my own work and has not been submitted to any other university for the award of a degree.

Signed________________________ Date: 28 October, 2009

Submitted with my consent

Signed _____________________

Professor T. P van Reenen (Supervisor) Date: 28 October, 2009

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DEDICATION

This dissertation is dedicated to my mother Mrs. Agnes Moloi. The support she has always rendered in my academic life is overwhelming. I can only reward the struggle she went through to make my life a success by supporting my younger sisters in their academic endeavor.

You have been a mother and a friend.

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ACKNOWLEGEMENT

I convey my profound gratitude to University of the Western Cape for granting me an opportunity to pursue LLM programme in Environmental law.

I wish to extend my sincere appreciation to the following people: My parents who have always supported me.

My supervisor Professor T.P van Reenen, without whose assistance this study would never have materialised. I wish to thank him for his wisdom, support and patience; his contribution was invaluable.

My friends Friday Leburu, Kago Pelekekae, Unathi Mooi, Unamandla Tandwa and Uphiwe Tandwa who stood by me with words of encouragement and never stopped believing in me. Finally, but not the least, Dr. Merrington for editing this dissertation. Thank you for sparing your time.

Thank you all.

Mr. Oduetse Koboto 28October, 2009

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TABLE OF CONTENTS

Declaration i

Dedication ii Acknowledgement iii

Copyright xiii

List of abbreviations xiv

1. INTRODUCTION 1

1.1 Background of the study 2

1.2 Statement of the problem 2

1.3 Objectives of the study 4

1.3.1 Broad objectives 4 1.3.2 Specific objectives 4 1.4 Hypothesis 4 1.5 Research methods 5 1.5.1 Library research 5 1.5.2 Internet 5 1.6 Scope of the study 5

1.7 Relevance of the study 6

1.8 Arrangement of chapters 6

2. The nature and essential elements of the environmental management legislation 2.1 Introduction 11

2.2 Principles of environmental framework legislation 11 2.3 Characteristics of environmental framework legislation 13

2.3.1 Flexibility 13

2.3.2 Policies and principles 13

2.3.3 Civil society involvement 14

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2.3.4 Integrated environmental management 14

2.4. Establishment of cooperative governance 15

2.4.1 International cooperation 15

2.4.2 Regional cooperation 16

2.4.3 Intra-governmental cooperation 16

2.4.4 Cooperative agreements 17

2.5 Institutional arrangements 17

2.5.1 Environmental Affairs Council 18

2.5.2 The Environmental Ombudsman 18 2.5.3 Government departments 19

2.6 Compliance, enforcement and implementation 19

2.6.1 Compliance procedures 19

2.6.2 Conflict resolution 20

2.6.3 Criminal sanctions 20

2.6.4 Civil measures 21

2.6.5 Locus standi 21

3. Environmental laws in Botswana 23

3.1 Introduction 24

3.2 The need for constitutional right to environment in Botswana 25

3.3 The management of environmental laws in Botswana 27 3.3.1 The Lesetedi Commission 28

3.3.2 Sesana and others v Attorney-General of Botswana 29 3.3.2.1 Applicability of relevant environmental legislation 29

3.3.2.2 Policy formulation 30 3.3.2.3 Public participation 31 3.3.2.4 Conflict resolution 31 3.4 Institutional arrangements 32

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3.4.1 Government departments 32

3.4.1.1 Department of Environmental Affairs 32

3.4.1.2 Department of Mining 33

3.4.3 The Environmental Ombudsman 34 3.5 Conclusion 35 4. The South African National Environmental Management Act No. 107 of 1998 37 4.1 Introduction 39

4.2 The right to environment 39

4.3 NEMA principles 42

4.4 Characteristics of NEMA 43

4.5. Establishment of cooperative governance 44 4.5.1 International cooperation 44

4.5.3 Integrated environmental management 45 4.5.4 Cooperative agreements 46

4.6.1.1 Department of Environmental Affairs and Tourism 47

4.6.1.2 National Environmental Advisory Forum 48 4.6.1.3 The Committee for Environmental Coordination 48 4.6.1.4 The Environmental Management Inspectorate 48 4.6.1.5 The Enforcement Directorate Unit 49

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4.7.1 Compliance procedures 49 4.7.2 Conflict resolution 49 4.7.3 Criminal sanctions 50 4.7.4 Civil measures 50 4.7.5 Locus standi 51 4.8 Conclusion 51 5. The Namibian Environmental Management ActNo. 7 of 2007 54 5.1 Introduction 55

5.3 Principles of environmental management legislation 58 5.4 Characteristics of environmental management legislation 58 5.4.1 Policies and principles 58

5.4.1.1 Policy for prospecting and mining in protected areas and national monuments 59 5.4.1.2 National policy and strategy for malaria control 59 5.4.1.3 Environmental assessment policy 60

5.4.1.4 National development plans 60

5.5 Establishment of cooperative governance 61

5.6.1 Sustainable Development Advisory Council 63

5.6.2 The Environmental Commissioner 64 5.6.2.1 Environmental Officers 64

5.6.3 The Environmental Ombudsman 65 5.7 Compliance, enforcement and implementation 65

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5.8 Conclusion 67 6. Kenyan Environmental Management and Coordination Act No. 8 of 1999 69

6.1 Introduction 71

6.3 Principles of environmental management legislation 74 6.4 Characteristics of environmental management legislation 74 6.4.1 Flexibility 74

6.5.2. Intra-governmental cooperation 76

6.6.1 National Environment Council 77

6.6.2 The National Environment Management Authority 78 6.6.3 Provincial and District Environmental Committees 78 6.6.3.1 Provincial Environment Committees 78

6.6.3.2 District Environment Committee 79

6.6.4 Public Complaints Committee 79

6.6.5 National Environment Tribunal 80

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6.6.6 National Environment Action Plan Committee 80

6.7.2.1 The Community of Elders 81

6.7.2.2 The Village Chiefs 82

6.7.2.3 Peace Committee 82

6.7.3 Criminal offences 82

6.8 Conclusion 83

7. Tanzanian Environmental Management ActNo. 20 of 2004 86

7.1 Introduction 87

7.3 Principles of environmental management legislation 89 7.4 Characteristics of environmental management legislation 90

7.4.2 Policies and Principles 90

7.6.1 National Environmental Advisory Council 92

7.6.2 National Environmental Management Council 92

7.6.3 National Environmental Standards Committee 93

7.6.4 Environmental Appeals Tribunal 93

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7.6.5 The Environmental Ombudsman 94

7.8 Conclusion 96 8. Comparison between the Botswana environmental management system and the Kenyan, Namibian, Tanzanian and South African environmental management systems 98 8.1 Introduction 99

8.3 Principles of environmental management legislation 101 8.4 Characteristics of environmental management legislation 102 8.4.1 Policies and principles 102

8.7.1 Compliance procedures 106 8.7.2 Conflict resolution 106 8.8 Environmental challenges 107 8.8.1 Botswana 107 8.8.2 Kenya 108 8.8.3 Namibia 108

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8.8.4 Tanzania 109

8.8.5 South Africa 109

8.9 Conclusion 110

9. Conclusion

9.1 Introduction 113

9.2 Principles of the Act 113

9.3 Policy formulation 114

9.4.1 Environmental Advisory Council 115

9.4.2 Committee for Environmental Coordination 115

9.4.3 District Environmental Committees 116

9.4.5 National Environmental Tribunal 117

9.5 Cooperative governance 117 9.6 Compliance procedures 118 9.7 Conflict resolution 119 10. Recommendations 120 Appendix 1 128 Bibliography 136

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COPYRIGHT

No part of this study shall be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage or retrieval system, without the permission of the author or the University of Western Cape.

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List of Abbreviations

CEC: Committee for Environmental Coordination DPP: Director of Public Prosecutions DEA: Department of Environmental Affairs

DEA&T: Department of Environmental Affairs and Tourism DEC: District Environmental Committee

EAT: Environmental Appeals Tribunal EC: Environmental Commissioner ECA: Environmental Advisory Council EFL: Environmental Framework Legislation EIA: Environmental Impact Assessment

EMCA: Environmental Management and Coordination Act EMIs: Environmental Management Inspectorate

EO: Environmental Officers GDP: Gross Domestic Product

IEM: Integrated environmental management NDP: National Development Plans

NEAC: National Environmental Advisory Committee NEAF: National Environmental Advisory Forum NEAPC: National Environment Action Plan Committee NEC: National Environmental Council

NEMA: National Environmental Management Act NEMC: National Environmental Management Council

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NESC: National Environmental Standards Committee NET: National Environment Tribunal

NGO: Non-Governmental Organisation

SADC: Southern African Development Community SDAC: Sustainable Development Advisory Council PCC: Public Complaints Committee

PEC: Provincial Environmental Committee

Word Count: 40,782

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1 TABLE OF CONTENTS

Chapter 1

INTRODUCTION 1

1.1 Background of the study 2

1.2 Statement of the problem 2

1.3 Objectives of the study 4

1.3.1 Broad objectives 4 1.3.2 Specific objectives 4 1.4 Hypothesis 4 1.5 Research methods 5 1.5.1 Library research 5 1.5.2 Internet 5 1.6 Scope of the study 5

1.7 Relevance of the study 6

1.8 Arrangement of chapters 6

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2 Chapter 1

Introduction

1.1Background of the study

It is a global concern that the environment and natural systems must be protected and conserved for the benefit of future generations.1 This has accelerated the development of environmental law as a new legal discipline. Such development has reflected a greater environmental consciousness which suggests that the protection of the environment is increasingly an objective justified in its own terms, and not simply a means of protecting humans.2

Government has a duty to protect the environment.3 This duty is achieved through promulgation of effective environmental laws for the better achievement of the environmental objectives.4 Environmental laws protect the environment against degradation5 for sustainable use and development.6

Government also has a duty to enact environmental framework legislation (EFL) which guides all environmental decisions and regulates matters incidental to the environment7 for sustainable use and development. 8

EFL facilitates the proper management of environmental laws. It coordinates environmental acts so that they are easily implemented. It serves as a guide under which other environmental legislative tools are interpreted.9 Other environmental statutes gain force from the EFL. At the core of EFL is the constitutional environmental right. The framework legislation puts into motion the constitutional right to environment by providing mechanisms for implementation of the right. 1.2Statement of the problem

There is no EFL in Botswana. Currently, environmental matters are regulated by different pieces of legislation and implemented by different government departments. There is no coordinated management of the various environmental department sectors which fall under the portfolios of these different government departments. Although it has not come under scrutiny whether the system, through its policies, is effective or not, it remains a challenge that such policies are reformed and in fact promulgated into framework legislation.

1_{Glazewski J. Environmental Law in South Africa (2005) at 5.} 2_{Rio Declaration Principle 1.}

3_{Glazewski op cit n1 at 5.}

4_{Sustainable use and development are the key objectives for environmental protection.} 5_{Glazewski op cit n1 at 142.}

6_{Sustainable use and development refers to the present use of the environment or natural resources which does not} compromise the ability to use the same by future generations or degrade the carrying capacity of supporting ecosystems. See Section 2 of Environmental Management Act, 2004 of Tanzania.

7_{Dugard J. International Law: A South African Perspective (2005) at 393.}

8_{Environmental protection, economic development and social upliftment are the key objectives of the principle of} sustainable development. 9_{Glazewski op cit n1 at 139.}

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This study addresses the integration of environmental governance in Botswana. The current system of environmental management has been analysed and demonstrates a need for the adoption of the right to a healthy environment into the Constitution, as well as the EFL. Further analysis shall be made in an attempt to determine how the right to environment can be protected and promoted.

Having several environmental laws can complicate environmental governance, especially if there is no legislative framework. The adoption of EFL to serve as a framework under which other environmental legislative instruments are interpreted10 can improve the management of such instruments and matters attributable to the environment. This is not only the case with environmental laws but also with other areas of the law; the constitution establishes the principal framework11 in terms of which other legislation has to be interpreted.12

An in-depth analysis of the relevant environmental policies and regulations in Botswana has reflected the need for EFL. The duty of the state, the nature and purpose of duties in correlation with the existing constitutional challenges to put environmental laws into place has been considered. This has nevertheless not changed the environmental management system in Botswana which can be improved by the EFL.

The Sesana and others v The Attorney-General13 case has also been analysed and has shown the need for legislative framework for management of the environment. The case dealt with several pieces of environmental legislation which could not be consolidated into a more systematic structure leading to an array of confusion as to whether some of the environmental law instruments are still applicable or not.

The Lesetedi Commission14 recommended the adoption of the legislative framework for the management of land use in Botswana due to existence of several legislative instruments on the use of land.15 The application of these statutes has been problematic as there is no guidance as to how they must be managed for the achievement of protection of natural resources and principles of sustainable development.

The Commission found that there was a conflict between the role of the Minister as a policy maker and as overseer of proper land allocation. The Minister was not able to provide the requisite checks and balances or audit systems for checking his/her own actions in allocation of

10_{Glazewski op cit n1 at 139.}

11_{The Attorney-General of Botswana, Dr. Athaliah Molokomme, speaking at a workshop for the Botswana} Consensus on the Rule of Law and Good Governance said that the bill of rights, enshrined in the Constitution of Botswana, lays out the fundamental rights and freedoms of the individual...the constitution also provide the legal framework for the three branches of government, the executive, legislature and the judiciary, their functions as well as the boundaries of their authority. See Botswana Daily News, Thursday May 8 at 3.

12_{Nel J. and W. du Plessis. ‘Evaluation of NEMA based on a generic framework for environmental framework} Legislation.’ (2001) 8 SAJELP at 2.

13_{Sesana and others v The Attorney-General 2006 (2) BLR 633 (HC).}

14_{The Lesetedi Commission of inquiry on state land allocation in Gaborone. 2004.} 15_{Lesetedi Commission op cit n14 at 149.}

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land. The Commission then recommended for an independent, impartial and transparent system to deal with land allocations and planning permission.16

In my view, the absence of EFL is the root cause of the deficiency considered in this research. 1.3Objectives of the study

1.3.1 Broad objectives

The broad objective of the study is to investigate how to give effect to the environmental objectives through legislation. The study proceeds to demonstrating how Botswana should adhere to the principle of sustainable use and development through the adoption of the necessary management legislation for the protection of the environment.

The study will be informed by a comparative analysis between Botswana’s environmental management systems with other states in the region17 which have adopted EFL. At the end of the study, a determination will be made whether EFL is necessary or not in Botswana.

1.3.2 Specific objectives

 To demonstrate the need to incorporate the right to a healthy environment into the Constitution of Botswana.

 To demonstrate how environmental right is put into motion through environmental legislation and policies.

 To demonstrate how to achieve environmental management objectives through the adoption of EFL in Botswana.

 To demonstrate how EFL can improve the current system of the management of environmental legislation in Botswana.

1.4Hypotheses

From the observations of the research, together with the investigations of other legal systems, the study makes the following assumptions:

 There is a general movement within the region towards the adoption of EFL.

 It is necessary to harmonise the environmental legislation between the states by bringing their domestic legislation in conformity with international environmental law.

 There is a need for the incorporation of the right to a healthy environment into the Constitution of Botswana.

16_{Lesetedi Commission op cit n14 at 149.} 17_{South Africa, Kenya, Namibia and Tanzania.}

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 The environmental jurisprudence of Botswana can be improved through the adoption of the environmental management legislation.

 That effective environmental management and governance system in Botswana can be improved by EFL.

1.5Research methods

In order to fulfill the objectives of the study, the following methods were used to gather information:

1.5.1 Library research

The library formed the main source of collecting information. I mainly intend to use a variety of sources such as textbooks, legislation, journals and policy documents. Decided court cases will also be used as authority to support my findings and legal opinions.

1.5.2 Internet

The internet will be used to search for any information on the environmental legislation and reform of the environmental laws and policies. Legislation which is foreign to Botswana shall also be sourced from the internet.

1.6Scope of the study

The study commenced with analysis of the structure of EFL and its components, the purpose for which it is adopted, and its significance and contribution to the management of the environment in any given state.

A determination was made as to the importance of incorporating the environmental right into the constitution, and how the right is given effect through the promulgation of subsidiary legislation. The relationship between the constitutional right to environment and EFL will be discussed with the view to determining how such a relationship helps to achieve effective environmental management and governance.

Since there is no constitutional right to a healthy environment, and no environmental framework legislation in Botswana, the study indicates shortcomings in the system of environmental management and governance and the need for environmental law reform.

The environmental management and governance legislation is broad and contains a number of chapters dealing with various environmental aspects. This study focuses on the essential elements of EFL, its principles and the applicability of principles, and the desirability and effectiveness of compliance, enforcement and implementation procedures. The study further determines how the courts give effect to the principles of EFL and their enforceability.

Institutional arrangements which are necessary for the implementation of the Act shall also be discussed. The relationship between these institutions as characterised by cooperative governance will be looked at with the view to determining how they improve the environmental management and governance. The system of management under the framework legislation will

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be briefly discussed, and that includes the Environmental Impact Assessment (EIA) and Integrated Environmental Management (IEM) legislation which are necessary for the management and governance of the framework legislation.

1.7 Relevance of the study

The study is important because there is no EFL in Botswana for the promotion of effective environmental management and governance. This shall be the first overarching environmental law research conducted with the view to propose the reform and establishment of EFL in Botswana. Such an act is proposed to serve as a general framework within which environmental management and implementation plans must be formulated. It shall serve as a guideline in which decision makers of organs of state are to base their decisions.18 The framework legislation puts into motion the constitutional right to the environment as it provides for the implementation mechanisms and institutional arrangements necessary for exercising the right in pursuit of environmental objectives.

The framework legislation defines overarching and generic principles in terms of which sectoral-specific legislation is embedded,19 as well as enhancing co-operative governance amongst fragmented line ministries20 as seen in the National Environmental Management Act of South Africa (NEMA),21 Environmental Management Act of Namibia,22 National Environmental Management and Coordination Act of Kenya (EMCA),23 and Environmental Management Act of Tanzania.24

1.8 Arrangement of chapters Chapter 1

Introduction

This chapter is introductory in nature. It gives the background and introduction to the study in order to understand the main objectives to be achieved. It contains a working hypothesis and literature review. The chapter demonstrates the ideal problem that initiated the need for the study as well as the research methods that inform the study. It also set out the structure that will be followed in this dissertation.

Chapter 2

The nature and essential elements of the environmental framework legislation

18_{Glazewski op cit n1 at 139.} 19_{Nel & du Plessis op cit n12at 1.} 20_{Nel & du Plessis op cit n12at 2.} 21_{Act 107 of 1998.} 22_{Act No. 7 of 2007.} 23_{No. 8 of 1999.} 24_{Act of 2004.}

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This chapter discusses the nature and essential elements of EFL25 and how they promote effective environmental governance as discussed by the article of Nel and du Plessis on the evaluation of the National Environmental Management Act of South Africa.26

The chapter demonstrates the need for EFL to conform to the essential elements for the achievement of principles of sustainable use and development in any given country.

The elements of framework legislation such as principles, institutional arrangements, and enforcement and compliance procedures facilitate the achievement of principle of sustainable use and development and effective environmental governance by providing the machinery for implementation of the Act.

Chapter 3

Environmental laws in Botswana

This chapter focuses on the right to a healthy environment in Botswana. It determines the Botswana constitutional principles dealing with the environment and how such provisions promote effective environmental management and governance.

The chapter demonstrates the importance of incorporating the right to a healthy environment into the Constitution of Botswana. The relationship of how EFL puts into motion the constitutional provision is demonstrated in this chapter.

The approach of the courts as to how the environmental legislation is constitutionally protected will be considered with the view to ascertain whether such approach serves justice or not to the environment.

The chapter further considers the environment management system in Botswana with the objective of determining how to promote effective cooperative environmental governance.

Chapter 4

The South African National Environmental Management Act No. 107 of 1998

This chapter gives analysis of EFL in South Africa. The chapter briefly discusses the environmental right but rather focuses on the NEMA.

The basic principles of EFL are critically analysed, as well as the institutional arrangements necessary for the implementation and management of the environmental laws.

The chapter further demonstrates how EFL improves the achievement of environmental objectives in South Africa. Decided cases are discussed in support of the advanced arguments with the view to ascertaining how the courts give effect to environmental laws.

25_{Such elements include the principles, characteristics, and institutional arrangements necessary for the} implementation of the environmental legislation.

26_{Nel & du Plessis op cit n12.}

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8 Chapter 5

The Namibian Environmental Management ActNo. 7 of 2007

The recently adopted Environmental Management Act of Namibia is modeled from the already existing environmental legislation. The principles of the Act are critically analysed. Other essential elements are scrutinized to determine how the promulgation of this legislation has improved the management and governance of the environment in Namibia. Any defects noted are discussed with the objective of finding how such short-comings can be overcome.

Chapter 6

The Kenyan Environmental Management and Coordination Act

This chapter focuses on EMCA. The essential elements of this Act are critically analysed with the view to finding how they better the management of environmental legislation. The institutional arrangements under the Act are looked at to ascertain the effectiveness of such institutions in the management of the environmental legislation.

Chapter 7

The Tanzanian Environmental Management Act

This chapter evaluates the Environmental Management Act of Tanzania. The chapter demonstrates how the management legislation has contributed into the improvement of management of the environment in Tanzania. The effectiveness of the institutional arrangements in terms of the Act is analysed.

Chapter 8

Comparison between the Botswana environmental management system, and South African, Namibian, Kenyan and Tanzanian environmental management systems

This chapter focuses on the comparison of Botswana EFL with that of South Africa, Kenya, Namibia and Tanzania.27 The similarities of their legislation, especially to the essential elements of the EFL, are discussed. Any defects or short-comings are analysed with the view to finding how the proposed EFL for Botswana can curb such defects as the model of best practice.

Chapter 9 Conclusion

This chapter encompasses the author’s opinion on the research with the view to achieving the specified anticipated outcomes. A determination as to the need and significance of EFL in Botswana is critically analysed.

27_{See Chapter 2 infra.}

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9 Chapter 10

Recommendations

This chapter provides the recommendations of the author culminating from the short-comings noted in the research. This chapter outlines the main components of EFL by compiling a proposed legislation in the form of an Act for Botswana.

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10 Chapter 2

The nature and essential elements of the environmental management legislation

2.1 Introduction 11

2.2 Principles of environmental framework legislation 11 2.3 Characteristics of environmental framework legislation 13

2.3.4 Integrated environmental management 14

2.4. Establishment of cooperative governance 15

2.4.4 Cooperative agreements 17

2.6.1 Compliance procedures 19 2.6.2 Conflict resolution 20 2.6.3 Criminal sanctions 20 2.6.4 Civil measures 21 2.6.5 Locus standi 21

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11 2.1 Introduction

Some countries28 have adopted EFL. This legislation defines overarching and generic principles for the enhancement of environmental cooperative governance between different spheres of government.29 It also provides for the general basic norms to be used for the promulgation and amendment of new environmental legislation.30

The South African EFL31 has been operational since 1998. The effectiveness of this framework legislation has been evaluated and recommendations made for its improvement.

The chapter is guided by the article of Nel and du Plessis32 which discusses the nature and essential elements of EFL.

This chapter discusses the principles and characteristics of the EFL. The institutional arrangements necessary for the implementation of the Act and how they facilitate the environmental co-operative governance, especially international, inter-regional and intra-governmental cooperation and civil society involvement in environmental policy formulation are discussed.

The enforcement procedures for EFL such as civil measures, compliance procedures and criminal sanctions will also be discussed.

The chapter serves as a framework by means of which other EFL in this dissertation are discussed.

2.2 Principles of environmental framework legislation

(a) EFL must benefit the environment. The purpose of the environmental framework structures is to ensure that the environment is protected against degradation for the achievement of principle of sustainable use and development.33 This is achieved by regulating the use of natural resources and minimizing environmental harm from human activities.

The effective regulation of the use of natural resources promotes the achievement of environmental objectives by providing improved opportunities to enhance the environmental quality.34 This is achieved by promotion of effective co-operative governance and the integration of various environmental instruments relating to environmental protection.

28_{Kenya, Namibia, South Africa and Tanzania.}

29_{Loots C.’ Making the environmental law effective’ (1994) 1 SAJELP at 18.} 30_{Loots op cit n29 at 2.}

31_{The National Environmental Management Act 107 of 1998.} 32_{Nel & du Plessis op cit n12.}

33_{UNEP Article 5.}

34_{Nel & du Plessis op cit n12 at 19.}

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(b) EFL must provide for the guideline procedures for policy formulation and enforcement. The legislation must contain general environmental legal elements for the formulation, enforcement and implementation of the environmental policies.35

The policy guidelines prescribed in the framework structure ensure that environmental policies are coordinated and consistent so that all decision makers are guided by the same principles in formulation and implementation of the environmental policy.

(c) The framework legislation must be guided by principles of international environmental law.36 The principles are aimed at protection of natural resources and must be considered when environmental legislation and environmental policies are developed.

Consideration of principles of international environmental law does not only provide for the achievement of environmental objectives, but also ensures that environmental legislation is aligned and consistent with international environmental law.

(d) The EFL must guide the decision makers when making any decision relating to environmental protection.37 All decision makers must adhere to the provisions of EFL and ensure that the prescribed procedures are complied with before making any decision. This will facilitate consistency in environmental decisions as well as certainty as to the position and status of the environmental laws.

(e) The framework legislation must guide the interpretation, administration and implementation of the environmental legislation.38 Framework legislation should provide for statutory interpretation and conflict resolution procedures which must be adopted when there are inconsistencies in environmental legislation.

(f) The framework legislation must be easily accessible. The public must be able to access environmental information and also facilitate the responsible offices with the necessary information required for the implementation of the structure as a matter of right. Where information is withheld from the public, it must be withheld for a justifiable cause.39 (g) The framework legislation must provide for the involvement of the civil society in the

making of decisions relating to environment. This ensures that the interests of all stakeholders and affected parties are taken into account as their participation affords them an opportunity to influence environmental decision making.

Civil society involvement is achieved by providing public participation in the formulation of environmental policy, environmental education and private prosecutions of environmental crimes.40

35_{Nel & du Plessis op cit n12 at 19.} 36_{See Chapter 2.3.5.1 infra.} 37_{Glazewski op cit n1 at 139.} 38_{Glazewski op cit n1 at 139.} 39_{Such as national security.} 40_{Nel & du Plessis op cit n12 at 31.}

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2.3 Characteristics of environmental framework legislation 2.3.1 Flexibility

EFL must contain flexible and adaptive measures which can be transformed into changing circumstances when necessary. This is achieved by providing for the formulation of environmental policies and regulations in sectoral line ministries aimed at protecting the environment.

The environmental policies and regulations can be more easily amended than an Act of Parliament. EFL should therefore promote policy considerations which can be flexible enough to be transformed by changing circumstances such as socio-economic and ecological factors. 41 2.3.2 Policies and principles

The principles of EFL provides for environmental policy integration.42 Policy integration requires interaction, accessibility and compatibility of environmental laws aimed at the achievement of integrated form of environmental governance.43

A fundamental requirement for both policy and principles of EFL is the desire to enhance sustainability.44 The integration of environmental policy is critical for the achievement of principle of sustainability hence fragmented environmental policies45 may lead to unexpected and unwanted environmental consequences which may occur at policy level in government.46 It is important that policy guidelines are enacted into the framework legislation to provide administrative authorities with clear direction as to the goals which they are expected to achieve, and means of implementation, which will serve as a standard against which their actions can be evaluated.47

The purpose of environmental policy is to inform the public on the government’s objectives and how to achieve them.48 Organs of state are therefore required to adopt measures which are necessary for the implementation of environmental policy. In order to be realisable, the policy must set out clear objectives, principles and guidelines that it intends to apply for governmental action.49

41_{Nel & du Plessis op cit n12 at 4.} 42_{See Chapter 2.2 supra.}

43_{Louis J. Kotze. A legal Framework for Integrated Environmental Governance in South Africa and North-West} Province. (2006) at Chapter 2.5.2.

45_{Fragmentation refers to the disjointed governance structures along separate, autonomous line functioning organs} of state that operate at national, provincial and local spheres of government. See Kotze op cit n43 at Chapter 2.3.1. 46_{Kotze op cit n43 at Chapter 2.3.1.}

47_{Loots op cit n29 at 24.}

48_{Loots C ‘The effect of the Constitution on Environmental Management’ (1997) 4 SAJELP at 230.} 49_{Loots op cit n48 at 230.}

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Both policy statements and principles serve as a framework against which defined actions are to be considered.50 The integration of various environmental policy considerations and principles of environmental framework legislation is an aspect that should be considered in the endeavor to establish a holistic form of environmental governance.

2.3.3 Civil society involvement

The government should invoke greater public participation in making decisions relating to the environment.51 Public participation should be promoted at the planning and development phases of policy formulation and environmental law making.

The participation and active involvement of all interested parties52 ensures that environmental instruments are enacted in the best interest of the public and the desired outcome is achieved.53 It therefore ensures that open, transparent and representative processes are followed,54 which have been adopted in the interest of the public through their participation.55

2.3.4 Integrated environmental management

EFL must provide for integrated environmental management (IEM) as a useful foundation for the integration of environmental governance efforts. IEM56 should guide the activities which might impact on the environment through governance, with the involvement of civil society and relevant stakeholders to achieve the desired objective.57

IEM primarily includes the inter-relationship between different spheres of government and environmental media such as air, land and water.58 The necessity of integrating the various environmental media is echoed by the inter-related nature of the environmental factors.

IEM is therefore aimed at addressing pollutants in an integrated way taking into account the tolerable constraints of the environment59 within the carrying capacity of natural resources as well as the prescribed environmental standards.

The principles of EFL should therefore provide for IEM to promote cooperative environmental governance between different spheres of government in order to achieve the environmental objectives.

50_{Nel & du Plessis op cit n12 at 6.} 51_{Glawzeski op cit n1 at 117.}

52_{Public and non-governmental organisations (NGO).} 53_{M Kidd. Environmental law. (2008) at 34.}

54_{Infra 2.4.1.}

55_{Kidd M op cit n53 at 8.}

56_{IEM refers to the management of the activities of people to ensure achievement of the principle of sustainability} and the utilisation of natural resources provided by all environmental media within the carrying capacities whilst promoting economic growth. See Kotze op cit n43 at Chapter 2.6.1.

57_{The ultimate objective of IEM is the achievement of the principle of sustainable use and development.} 58_{Kotze op cit n43 at Chapter 2.6.1.}

59_{Kotze op cit n43 at Chapter 2.6.1.}

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15 2.4 Establishment of co-operative governance 2.4.1 International cooperation

International cooperation refers to the obligation between governments at an international level to share information regarding potential environmental damage.60 This obligation emanates from the Stockholm Declaration61 which reflects a general political commitment to international cooperation in matters concerning the environment.62 It is also echoed by the Rio Declaration63 which provides for states and people to cooperate in good faith, in the fulfillment of the embodied principles, for the development of international law in the field of sustainable development.64

International law does not allow states to conduct or permit activities within their territories, or in common spaces, without regard to the rights of other states, or for the protection of the environment.65 It is the duty of every state engaging in activities which are likely to adversely impact on the environment of another, to timeously inform such other state, so that mitigation measures, as well as an assessment as to extent of the damage likely to be caused, are undertaken.66

The nature and extent of this obligation is even invoked in international disputes67and has been translated into specific commitments through techniques designed to ensure information sharing and participation in decision making.68

The existence of international treaties on the conservation and utilisation of natural resources69 signals the need to recognise international dimensions that should be included in the analysis of the macro-organisational arrangements of environmental governance.70

EFL should ensure public participation in negotiations dealing with the writing of conventions and international environmental legislative proposals.71 The framework legislation should also ensure that mechanisms and competencies to implement international treaties and conventions are adopted.

60_{This is provided by the principle of international cooperation.} 61_{Of 1972.}

62_{Principle 24.}

63_{Rio Declaration on Environment and Development of 1992.} 64_{Principle 27.}

65_{Birnie P.W and A.E Boyle. International Law and the Environment. (2002) at 104.} 66_{Principle 8.}

67_{In Gabcikovo-Nagymaros Project case the court held enforced the principle of international cooperation and held} that Slovakia had not cooperated in good faith in the implementation of principles affecting transboundary resources. See also Case concerning Kasikili/Sedudu Island (Botswana/Namibia).

68_{Sands P. Principles of International Environmental Law (2003) at 250.}

69_{World Summit on Sustainable Development of 2002 is one of the treaties on the use of natural resources. These} treaties have a direct impact on the management of environmental affairs at national level e.g. the ratification of the convention on Biological Diversity which provided for the development of national biodiversity policy and strategy in South Africa. See Strydom H. A. and N. D. King. Environmental Management in South Africa. (2009) at 81. 70_{Strydom & King op cit n69 at 80.}

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16 2.4.2 Regional cooperation

The Declaration and Treaty of the Southern African Development Community (SADC)72 promotes regional cooperation amongst member states by establishing protocols which may be necessary for their cooperation in various fields of governance.73

SADC environmental treaties are aimed at promoting the equitable use and sustainable development of natural resources. The member states which are signatories to the SADC treaties are required to give effect to the treaties within national processes by adopting measures which are necessary for their implementation.74

The member states have the obligation to ensure that their national processes and procedures of environmental management and governance promote regional cooperation necessary for the achievement of the objectives of the treaties and protocols. 75 In promoting regional cooperation, member states must be guided by principles of international law such as the principle of cooperation, precautionary principles and the preventative principle.76

EFL facilitates for the achievement of effective coordination and governance efforts by promoting regional cooperation necessary for the implementation and enforcement of environmental objectives. This ensures that environmental legislation within the region corresponds to national boundaries, and environmental and economic issues are integrated regionally for the achievement of the principle of sustainable development.77

2.4.3 Intra-governmental cooperation

This entails the creation of cooperative structures between spheres of the same government of any given state. The government department whose actions are likely to affect the environment should commit themselves to minimise environmental harm.78

The environmental factors are multi-facetted and often fall within the jurisdiction of various spheres and organs of any given state.79 These organs of state should be involved in the planning processes and decision making relating to the environment, particularly their cooperation and participation in the planning and development of environmental policy.

EFL should provide for coordination of all planning authorities in the development process. Effective planning and development of environmental policy can be achieved through

72_{The Declaration and Treaty of SADC of 1992.} 73_{Art 22.}

74_{Art 22.}

75_{SADC treatry op cit n72 article 22.} 76_{Dugard op cit n7 at 394.}

77_{Nel & du Plessis op cit n12 at 9.} 78_{Glazewski op cit n1 at 108.} 79_{Glazewski op cit n1 at 108.}

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cooperation of all organs of state ranging from national and provincial government to local government.80

Nel and du Plessis propose for the establishment of Planning Committees whose membership is comprised of representatives from all organs of state and representatives from NGOs. The committees must be tasked with the responsibility of national environmental policy planning and development as well as the promotion of cooperative environmental governance. 81

The cross-sectoral representation in the proposed Planning Committees ensures that environmental information is disseminated to all stakeholders active in environmental governance.82 The sharing of information facilitates transparent and well cooordinated management of environmental legislation as other structures of government are able to make informed decisions and contribution in policy formulation relating to the environmental issues. 2.4.4 Cooperative agreements

Cooperative environmental governance may be effectively achieved and promoted by environmental management cooperative agreements entered into by various organs of state having jurisdiction over the matter which is affected by the agreement.83

The purpose of cooperative agreements is to adopt a collective cooperative and participative approach in environmental management.84 They serves as a framework for future cooperation and specify the parties to the agreements’ shared objectives, such as roles and responsibilities, sharing of information, harmonisation of decision making and mutual support.85

EFL should promote cooperative agreements at all levels of environmental governance necessary to give effect to the principles of cooperative governance contained in the framework legislation. Such cooperation should be extended to NGOs and the public as interested parties in environmental management and governance, for purposes of promoting compliance with the principles of the Act.

2.5 Institutional arrangements

The effective implementation of environmental legislation depends on appropriate institutional arrangements which are designed to apply environmental policy for sustainable development as a collective undertaking.86 These institutions focus on the national policy formulation and the

80_{Kotze L. and S. De La Harpe. ‘The good, the bad and the ugly: Using good and cooperative governance to} improve environmental governance of South African World Heritage Sites: A case study of the Vredefort Dome’. 2008 (2) PER at 40.

81_{Nel & du Plessis op cit n12 at 10–11.} 82_{Nel & du Plessis op cit n12 at 11.} 83_{Glawzeski op cit n1 at 158.} 84_{Glawzeski op cit n1 at 159.}

85_{Bosman C. L. Kotze and W. du Plessis. ‘The failure of the Constitution to ensure integrated environmental} management from a co-operative governance perspective’. (2004) 19 SAPR at 420.

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promotion and facilitation of coordination and cooperation on environmental management issues.87

Different institutional options should be considered before strategic decisions are made as to the type of institution necessary for an environmental governance system.88

The following institutions are necessary for the administration and implementation of environmental management legislation:

2.5.1 Environmental Advisory Council

There should be an Environmental Advisory Council (ECA) to perform the functions of state administration. The ECA should be composed of members whose experiences reflect various fields of environmental management in the public and private sector.89

ECA should be tasked with informing the relevant authorities on the application of environmental principles and advising on any matter concerning the environmental management and governance.

ECA should also review and advise on any environmental standards, guidelines and regulations relevant to the administration of the framework legislation. The ECA should deal with national policy formulation and realization of environmental objectives as well as promotion and facilitation of coordination and cooperation of intra-governmental structures.90

2.5.2 Environmental Ombudsman

Environmental management and governance is broad and therefore environmental service is also diverse in nature. It is therefore necessary to establish a central government institution with high political status and sufficient government authority91 such as the Environmental Ombudsman. The Office of the Ombudsman is an extra ministerial body, and in discharging its functions is not subject to the direction or control of any other person or authority, and its proceedings cannot be questioned in any court of law.92 Reports from the Office of the Ombudsman are filed to the President and eventually to parliament.93

The essential characteristics of the Ombudsman Office are that it must be impartial and independent. The Environmental Ombudsman’s operations must be independent from the

87_{Paterson A and L. J Kotze. Environmental Compliance and Enforcement in South Africa. Legal Perspctives.} (2009) at 78.

88_{Paterson & Kotze op cit n87 at 78.} 89_{Glazewski op cit n1 at 142.}

90_{See s 40 of Tanzania Environmental Management Act of 2004.} 91_{Strydom & King op cit n69 at 79.}

92_{http://www.eisa.org.za/WEP/comagency.htm (accessed on 26 September 2009 at 09.40)} 93_{http://www.eisa.org.za/WEP/comagency.htm op cit n92.}

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government and agencies it is mandated to investigate.94 It is important that the independence of the office be clearly demonstrated in the statutory basis on which it is established.

The Environment Ombudsman should monitor compliance with environmental policy and be able to act decisively when conflict arises between powerful interest groups. The Ombudsman acts as a mediator between the government and citizenry and could initiate judicial review of both environmental legislation and administrative actions.95

2.5.3 Government departments

The government has a constitutional mandate to conduct its business in a way that is consistent with the principle of sustainable development, and to integrate environmental issues into its planning process.96 Environmental management should be integrated at all levels or spheres of government ranging from policy planning to operational levels of organisations.97

The government is responsible for implementing environmental policies, plans and programmes at national level as well as ensuring that environmental management is integrated and compliant with the principles of EFL.

Various government departments manage different environmental management instruments relevant to their ministerial portfolios. These departments should be tasked with the administration and enforcement of environmental sectoral specific legislation.

These traditional government departments98 as institutional arrangements are subject to political control and are therefore the least autonomous of the available institutional types.99

EFL must promote cooperative governance by developing procedures aimed at promoting the integration and coordination of environmental functions exercised by various government departments.

2.6 Compliance, enforcement and implementation 2.6.1 Compliance procedures

EFL should provide a clear and compliance procedure which can be understood by all stakeholders. The procedure should be fair, reasonable and achievable in conception, in order to guide the enforcement and implementation of environmental instruments.100

94_{http://www.eisa.org.za/WEP/comagency.htm op cit n92.}

95_{Van Reenen T.P ‘Constitutional protection of the environment: Fundamental (Human) right or principle of state} policy’ (1997) 4 SAJELP at 289.

96_{Couzens E. and M. Dent. ‘Finding NEMA: The National Environmental Management Act, the De Hoop Dam,} conflict resolution and alternative dispute resolution in environmental disputes’. (2006) 3 PER at 22.

97_{Strydom & King op cit n69 at 17.}

98_{Various governments departments and their roles in environmental management and governance shall be discussed} in Chapter 4.5 infra.

99_{Strydom & King op cit n69 at 78.}

100_{.De Ville J.R. Judicial Review of Administration Action in South Africa. (2003) at 40.}

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The principles of EFL must provide compliance procedure as a guiding principle for enforcement and implementation which should be adhered to by decision makers and affected parties. Failure to comply with the provisions of the Act should attract prescribed sanctions. The institutions under the framework legislation must have the power to enforce the prescribed sanctions.101 Failure to empower such institutions renders the statute redundant as it will be unenforceable. 102 Environmental officers (EO) must be able to issue compliance and abetment notices and directives103 setting out the nature of the contravention with the Act, as well as the extent of possible sanctions.

2.6.2 Conflict resolution

Not all the environmental disputes can be resolved by the courts.104 The parties may choose to refer the dispute to alternative dispute resolution mechanisms which may include arbitration, negotiation and mediation.

A conflict may originate between government departments as a result of conflicting legislation. EFL should therefore provide for conflict resolution procedures between the organs of state. If any legislation is in conflict with EFL, then the latter should prevail.105 Conflict resolution mechanisms must be defined and applicable to NGOs as well.

International conflict resolution procedures and mechanisms are available to assist in the settlement of international environmental disputes.106 The United Nations Charter contains the traditional mechanisms of conflict resolution inter alia negotiations, mediation, conciliation and arbitration.107

2.6.3 Criminal sanctions

EFL should expressly provide for the offences under the Act.108 The punishment must take into account the nature and extent of the environmental damage, especially the irreparable nature of environmental harm.109

If punishment is a fine, it should be a significant amount to deter potential offenders from contravening the provisions of the Act. This would discourage non-compliance by imposing costs on those who fail to comply with prescribed environmental standards.110

101_{This will ensure that there is conformity by detecting violations of the law.} 102_{Paterson & Kotze op cit n87 at 53.}

103_{Paterson & Kotze op cit n87 at 55.}

104_{Richard Macrory. Regulations, Enforcement and Governance in Environmental Law. (2008) at 45.} 105_{Nel & du Plessis op cit n12 at 12.}

106_{The United Nations Charter of 1945 available at http://www.un.org/en/documents/charter/ (accessed on 28} September 2009 at 10.21)

107_{Article 33.}

108_{Paterson & Kotze op cit n87 at 53.}

109_{Kidd M. ‘Environmental Crime – Time for a Rethink in South Africa’ (1998) 5(2) SAJELP 181 at 193.} 110_{Kidd op cit n109 at 194.}

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In determining the amount to be imposed, the court should consider the seriousness of the violation, the economic benefit resulting from the violation, as well as any history of such violations.

Furthermore, the courts should consider any good-faith efforts to comply with the applicable requirements, the economic impact of the penalty on the violator, and such other matters as justice may require.111

2.6.4 Civil measures

Civil sanctions such as interdict, damages and delictual measures are replacing a significant part of the criminal law in critical areas of law enforcement because they are cheap, easy and quicker to impose than criminal sanctions. 112 They are not constrained by criminal procedure and therefore imposing them is more efficient in combating environmental crimes.113

Interdicts allows for proactive intervention by stopping the development of any proposed activity which is harmful to the environment. It is quicker to resolve the matter through interdicts than criminal sanctions. 114 Although interdicts are mainly provisional sentences, they however ensure that compliance and enforcement procedures are followed.

Civil sanctions are awarded by the courts. They are easier to impose because they do not require stringent standard of proof as in criminal matters.115 The standard of proof is on a balance of probabilities other than proof beyond reasonable doubt required in criminal sanctions. They are also useful where the violator did not have criminal mens rea116 but procedural oversight.

Delictual measures allows for the victims of harm caused by any environmental activity to recover damages from violators.117 Delictual measures may also be used in addition to criminal sanctions or any other enforcement measures.

It is therefore imperative for EFL to provide for civil measures as possible sanctions against anybody who fails to comply with the provisions of environmental legislation.118

2.6.5 Locus standi

Locus standi regulates one’s competence to invoke the jurisdiction of the court in enforcing non-compliance with environmental legislation. For the parties to be able to approach the court for compliance, enforcement and implementation of environmental legislation, they must have the necessary standing in law.

111_{Kidd M. ‘Alternatives to the Criminal Sanction.’ (2002) 9 SAJELP at 43.} 112_{Kidd op cit n111 at 43.}

113_{Kidd op cit n111 at 38.} 114_{Kidd op cit n111 at 42.} 115_{Kidd op cit n111 at 44.}

116_{The mental element of environmental crime is difficult to prove and may render criminal sanctions ineffective.} See also Glazewski op cit n1 at 119.

117_{Kidd op cit n111 at 46.} 118_{Loots op cit n29 at 34.}

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EFL should provide the rules of locus standi as a necessary and inherent measure of enforcing compliance with environmental legislation.

The public and public organisations as interested and affected parties in environmental crimes should be authorised to utilize judicial remedies available to enforce administrative authorities to comply with their obligations.119

119_{Loots op cit n29 at 27.}

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23 CHAPTER 3

Environmental laws in Botswana 23

3.1 Introduction 24

3.2 The need for constitutional right to environment in Botswana 25

3.3 The management of environmental laws in Botswana 27

3.3.1 The Lesetedi Commission 28

3.3.2 Sesana and others v Attorney-General of Botswana 29

3.3.2.1 Applicability of relevant environmental legislation 29

3.3.2.2 Policy formulation 30

3.3.2.3 Public participation 31

3.3.2.4 Conflict resolution 31

3.4.1.1 Department of Environmental Affairs 32

3.4.1.2 Department of Mining 33

3.5 Conclusion 35

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24 3.1 Introduction

Botswana, formerly the British Protectorate of Bechuanaland, was declared a British Protectorate in March 1885.120 After the discovery of gold in 1867, the Transvaal government, which was a Boer republic, was opposed to the British colony and sought to annex parts of Bechuanaland despite the fact that Britain forbade annexation.121

The origin of environmental laws in Botswana can be traced back to the founding of the Bechuanaland Protectorate.122 In 1891, the law of the Cape Colony was introduced into the Protectorate of Bechuanaland and applied to Europeans and British subjects only. Roman-Dutch law as influenced by English law is the common law of Botswana. This common law is subsisting side by side with the legislation, judicial decisions and customary law123 as a source of law.124

At independence, Botswana inherited the colonial environmental management system which was unsystematic and disorganized125 and it did not modify the system to provide for a more integrated approach to achieve effective environmental governance.126

The Constitution of Botswana was drafted by graduates from British schools and consequently modeled against the colonial governance.127 The Constitution however remains the supreme law of the land and any legislation inconsistent with it is invalid.128

The environmental management system in Botswana is therefore not integrated and does not promote cooperative environmental governance necessary for the achievement of principle of sustainable development.

This chapter briefly investigates the Constitutional environmental protection in Botswana and how the present environmental management system facilitates for the achievement of environmental principles.

Furthermore, this chapter discusses the relationship between the constitution and the environment with the view to defining how EFL furthers the constitutional commitment to environmental protection.

120_{After urging by Khama III, a chief of the Tswana nation for protection, a protectorate was then established. See} Lubabalo. Botswana's Legal System and Legal Research (2006) at 1.

http://www.nyulawglobal.org/globalex/Botswana.htm (accessed on 17August 2009 at 12.00). 121_{http://www.nyulawglobal.org/globalex/Botswana.htm (accessed on 17 August 2009 at 12.00).}

122_{The common law in force in the Cape of Good Hope (now South Africa) was the Roman-Dutch law as received} from Holland and developed by the Colony's superior courts.

123_{Customary law is only applied to tribesmen of Botswana.}

124_{http://www.nyulawglobal.org/globalex/Botswana.htm (accessed on 17 August 2009 at 1200).} 125_{http://www.emeraldinsight.com (accessed on 17August 2009 at 12.00).}

126_{http://www.cato.org/pubs/journal (accessed on 17August 2009 at 11.50).} 127_{http://www.cato.org/pubs/journal (accessed on 17 August 2009 at 11.50).} 128_{See the Constitution of Botswana Chapter 1.}